Whitt v. McCall

Filing 29

ORDER ADOPTING THE REPORT AND RECOMMENDATION, granting respondent's motion for summary judgment, denying a certificate of appealability and dismissing this matter with prejudice, for 14 Motion for Summary Judgment filed by Michael McCall. Signed by Honorable Cameron McGowan Currie on July 19, 2010. (kbos)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION ) ) Petitioner, ) ) v. ) ) Michael McCall, ) ) Respondent. ) ___________________________________ ) Robert Dean Whitt, # 254484, C/A NO. 3:09-998-CMC-JRM OPINION and ORDER

This matter is before the court on Petitioner's pro se application for writ of habeas corpus, filed in this court pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this matter was referred to United States Magistrate Judge Joseph R. McCrorey for pre-trial proceedings and a Report and Recommendation ("Report"). On February 22, 2010, the Magistrate Judge issued a Report recommending that Respondent's motion for summary judgment be granted and this matter dismissed with prejudice. The Magistrate Judge advised Petitioner of the procedures and

requirements for filing objections to the Report and the serious consequences if he failed to do so. Petitioner did not file timely objections to the Report. On March 16, 2010, this court adopted the Report of the Magistrate and granted summary judgment to Respondent. Dkt. # 22 (filed Mar. 16, 2010). On April 1, 2010, the court received from Petitioner a motion for extension of time to respond to the Report. Dkt. # 25 (filed Apr. 1, 2010). This court vacated the order granting summary judgment and gave Petitioner until May 3, 2010, to file objections to the Report. Dkt. # 26 (filed Apr. 9, 2010). No further communication has been received from Petitioner. 1

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.

See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that "in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.") (citation omitted). After reviewing the record of this matter, the applicable law, and the Report and Recommendation of the Magistrate Judge, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court again adopts and incorporates the Report and Recommendation by reference in this Order. Therefore, for the reasons set forth in the Report, Respondent's motion for summary judgment is granted and this matter is dismissed with prejudice. CERTIFICATE OF APPEALABILITY The governing law provides that: (c)(2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right. (c)(3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists 2

would find this court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is denied. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina July 19, 2010

C:\Documents and Settings\Kgb07\Local Settings\Temp\notesE1EF34\09-998 Whitt v. McCall adopt rr gr sumjgm after vacate den cert app.wpd

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